Here is a table: A prolegomenon to a future new evidence scholarship in Africa
| Date | 01 April 2022 |
| DOI | 10.1177/13657127221078336 |
| Published date | 01 April 2022 |
| Author | Tshepo Bogosi Mosaka |
| Subject Matter | Articles |
Here is a table: A prolegomenon
to a future new evidence
scholarship in Africa
Tshepo Bogosi Mosaka
University of Cape Town, Rondebosch, South Africa
Abstract
While it has revolutionised Evidence scholarship in the Euro-American world (mainly common
law jurisdictions), the New Evidence Scholarship (‘NES’) movement is yet to arrive on African
shores. African Evidence scholarship still largely reflects the relatively antiquated ‘golden age of
doctrinal Evidence scholarship’, anchored by leading figures such as Bentham, Stephen, Thayer
and Wigmore. This essay draws from the clarion call made historically by Biko and Sobukwe,
among several other Africans, for Africa to avoid occupying a seat at a table that has already
been set for it, typically in Europe. Africa approaches NES relatively late in the game, but it is
contended in this essay that this presents the continent with an opportunity to draw insights
from the developments of NES in the Euro-American world with a view of making its own con-
tribution to this burgeoning field of scholarship. This essay suggests that the recognition of the
special relativity of evidential proof may be a useful foundation for much broader theorising
about evidence and proof in Africa. The essay concludes by using two models of proving
the conduct and unlawfulness elements of the crime of corruption to illustrate the implications
of this probative theory of special relativity.
Keywords
new evidence scholarship, Africa, law of evidence, argumentation, proof, decolonisation
Introduction
Describing the colonial project using the metaphor of a set table to which Africans are invited, coerced or
compelled (hereafter ‘In-Co-Co-nised’) to sit alongside their European counterparts is familiar to most
African scholars. Bantu Biko said the challenge for Africans is to ‘strip the table of all [its] trappings’
and ‘decorate it in true African style’(Biko, 1978: 69). According to Dladla, the post-independence
period in Africa is characterised by some indigenous conquered people opting to take their seats at the
Corresponding author:
Tshepo Bogosi Mosaka, Public Law,University of Cape Town, Room 6.09, Kramer Law Building,Rondebosch, Western Cape 7701,
South Africa.
Email: tshepo.mosaka@uct.ac.za
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(2) 178–196
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/ 13657127221078336
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table without changing any of the tableware, whereas others remain ‘locked outside the house nowhere
near the dining room’(Dladla, 2000: iii). The table of Evidence scholarship to which Africa
1
was origin-
ally In-Co-Co-nised to sit is the traditional doctrinal version that reached its zenith in 1972 when Cross
was quoted as saying that he was working for the day when his subject was abolished (see Murphy, 1999:
327; Twining, 1985: 10; Twining, 2006: 1). This ‘golden age of doctrinal scholarship’(Park, 1991: 854–
5) was understood, according to Stephen, whose work continues to dominate the Law of Evidence in
most African jurisdictions (Adangor, 2015: 34; Miller, 1966: 3; Morris, 1968: 1–23), as principally con-
sisting of ‘two elements’, namely ‘an enormous number of cases’and ‘a comparatively small number of
Acts of Parliament’(Stephen, 1887: x). This particular table has been fundamentally reconfigured in the
Euro-American world by the now extant new evidence scholarship movement (Lempert, 1986; Lempert,
2001: 1622 and 1622, n13; Park, 1991: 854; Twining, 1999: 352, n4). While several scholars in that part
of the world have said that ‘new evidence scholarship is no longer new’(Pardo, 2013: 549; Welch, 2020:
351), this revolution is yet to arrive on African shores.
At the heart of this paradigmatic redirection has been a shift in focus away from ‘a school-rules view of
the field’(Boyle, 2007: 88; Twining, 1985: 10; Twining, 2006: 1) towards what Wigmore referred to as
‘the ratiocinative process’of proof (Wigmore, 1913: 3). Despite the founders of this journal regarding
‘evidence as a multidisciplinary subject…[concerned with] inferential reasoning,’and, therefore, inviting
submissions of ‘an interdisciplinary nature’(from disciplines such as anthropology, criminology, psy-
chology, statistics and linguistics) (McConville and Leng, 1996: 3), only two Africans, Jamil Mujuzi
and Pamela-Jane Schwikkard, have been published in the journal since its inception in 1996, and both
have written doctrinal pieces in the mould of the ‘golden age’of Evidence scholarship described
earlier (Mujuzi, 2013: 347; Mujuzi, 2015: 3; Mujuzi, 2020: 419; Schwikkard, 2001: 32; Schwikkard,
2004: 120). Other indicators of the entrenchment of doctrinal Evidence scholarship in Africa include:
the continued structural adherence to Stephen’s trifurcated conception of the field as consisting of ‘the
relevancy of facts’(admissibility), ‘the proof of facts’(the different forms of mechanisms through
which evidence can be adduced) and ‘the production of proof of relevant facts’(rules pertaining to
burdens and standards of proof) (Stephen, 1872: 9) by most textbook writers
2
and legislators
3
across
the continent. Another indicator is the fact that Wigmore’s doctrinal Treatise, as opposed to his
‘Science of judicial proof’(Wigmore, 1913), remains one of the most cited pieces of Evidence scholar-
ship across Africa (Ataloye vThe State (2012) LPELR-19666 (CA) at 33; RvHassan Randu Nzioka
[2019] eKLR at 4; SvLin [2010] 1 All SA 358 (W) ; SvMasawi 1996 (2) ZLR 472 (S) at 512–3;
Uganda vLongole (Criminal session case No. 104 of 2014) [2016] UGHCCRD 18; Paizes, 1986:
708; Zeffertt and Paizes, 2017: 33).
Twining traces the development of new evidence scholarship through five phases (Twining, 1999:
352–6; see also Park et al., 2010: 553). Firstly, there were early debates about the potential utility of sta-
tistics and probability theory in fact-finding (Ball, 1961; Cullison, 1969; Kaplan, 1968). These debates
were further spurred on by the difficulties encountered in People vCollins (68 Cal. 2d 319, 438 P.2d
1. The reference to ‘Africa’throughout this essay is used only in relation to African jurisdictions with common law colonial roots.
One can hardly refer to a distinct subject area called ‘the Law of Evidence’in the mainly western and central African jurisdictions
with civilian colonial heritage.
2. Schwikkard and Van der Merwe, 2016: sections A–F (relevancy/admissibility), sections G–H (production), and sections I–J
(proof); Zeffert & Paizes, 2017: parts III–V (relevancy/admissibility), part VI (production), and parts II and VII (proof);
Schmidt & Rademayer, 2021: chapters 13–21 (relevancy/admissibility), chapters 8–12 (production), and chapters 2–7
(proof); Bellengère et al, 2013: parts 2 and 7 (relevancy/admissibility), parts 3–5 and 8–9 (production), and part 6 (proof).
3. Evidence Act (Cap 112 of the Laws of the Federation of Nigeria, 2011) (Parts I–IV and XIII–XIV on Relevancy/Admissibility;
Parts V, VII–VIII and XI–XII on Production; and Parts VI and IX–X on Proof); Evidence Act (Cap 80 of the Laws of Kenya,
1963) (Chapter 2 on Relevancy/Admissibility; Chapters 3, 5 and 7 on Production; and Chapter 4 on Proof); Evidence Act 6 of
1967 (Republic of Tanzania) (Chapter 2 on Relevancy/Admissibility; Chapters 3 and 5 on Production; and Chapter 4 on Proof).
Mosaka 179
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